Rite Aid Corp.

National Labor Relations Board - Board Decisions

Jun 29, 1971

191 N.L.R.B. 778 (N.L.R.B. 1971)

778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Rite Aid Corporation and International Brotherhood
of Teamsters , Chauffeurs , Warehousemen and Help-
ers of America, Local Union No. 382 . Case 3-CA-
4255
June 29, 1971
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND KENNEDY
On April 15, 1971, Trial Examiner Eugene F. Frey
issued his Decision in the above-entitled proceeding,
finding that the Respondent had engaged in and was
engaging in certain unfair labor practices and recom-
mending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached
Trial Examiner's Decision. He also found that Re-
spondent had not engaged in certain other unfair labor
practices and recommended that the allegations per-
taining thereto be dismissed. Thereafter, Respondent
and the General Counsel filed exceptions to the Trial
Examiner's Decision with briefs in support thereof.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its powers
in connection with this case to a three-member panel.
The Board has reviewed the rulings of the Trial Ex-
aminer made at the hearing and finds that no prejudi-
cial error was committed. The rulings are hereby
affirmed. The Board has considered the Trial Ex-
aminer's Decision, the exceptions and briefs, and the
entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the recommended Order of
the Trial Examiner and hereby orders that the Re-
spondent, Rite Aid Corporation, Utica, New York, its
officers, agents, successors, and assigns, shall take the
action set forth in the Trial Examiner's recommended
Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
EUGENE F. FREY, Trial Examiner: This case, which was
tried before me in Utica, New York, on February 9, 10, and
24, 1971, following pretrial procedures in compliance with
the National Labor Relations Act, as amended, 29 U.S.C.
Sec. 151, et seq. (herein called the Act), involves the issues'
whether Respondent, Rite Aid Corporation, coerced its em-
ployees by interrogation regarding their activities on behalf of
the above-named Union and by granting a certain benefit to
induce them to refrain from membership in or activity on
behalf of the Union, in violation of Section 8(a)(1) of the Act,
and discharged Robert Brennon because of his membership
in and activities on behalf of said Union, in violation of Sec-
tion 8(a)(3) of the Act. At close of the hearing all parties
waived oral arguments, and I granted them until April 1,
1971, to file written briefs. Briefs filed by both sides have been
carefully considered in preparing this Decision, which was
signed and released by me on April 8, 1971, for transmittal
to the parties in the usual course.
Upon the entire record in the case and from my observa-
tion of the witnesses on the stand, I make the following:
FINDINGS OF FACT
I RESPONDENT'S BUSINESS AND STATUS OF THE UNION
Respondent is a Delaware corporation with its principal
office and place of business in Harrisburg, Pennsylvania, and
operates retail stores in various places in the States of New
York, Pennsylvania, and Connecticut, including a store on
Auert Avenue, Utica, New York, called the North Utica
store, which is the only store involved in this case. At all
material times herein it has operated in said stores in the
business of retail sale of health and beauty aids, drug items,
and related services. In the 12 months prior to issuance of the
complaint, Respondent in its business operations has sold and
distributed products valued in excess of $500,000, and in the
same period of time has had direct inflow of products valued
in excess of $50,000 to its North Utica store. I find that
Respondent is and has been an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act.
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
II THE ALLEGED UNFAIR LABOR PRACTICES'
A. Background Events
About February 1970, the Union began a campaign to
organize the retail employees (excluding pharmacists and the
usual supervisors and other workers) in the North Utica store
and thereafter filed a petition for an election in Case 3-RC-
4889, in which a Board-supervised election was held on Au-
gust 27. The Union won by a vote of 5 to 1 and was certified
by the Board on September 8 as the statutory bargaining
agent of employees in a unit composed of clerical employees.
On the same day the Board conducted another election at
that store involving a unit of pharmacists in 10 stores in the
Rome-Utica-Herkimer area and a similar election at the Her-
kimer, New York, store in a unit of clerical employees.
Robert Brennon, a retail clerk and cashier at the North
Utica store, had actively assisted the Union in the campaign,
signing a union authorization card sometime in February or
March and openly soliciting employees to attend union meet-
ings. He was also an official observer for the Union at each
of the above elections.
During the events related hereafter, the following officials
and agents of Respondent, who are also supervisors within
the meaning of Section 2(11) of the Act, were operating in the
North Utica store and the administrative area including it:
Roy Campbell as division manager, William DeCrisi as area
supervisor, Peter Eterno as North Utica store manager, and
' The issues arise on a complaint issued December 2, 1970, by the Board's
Regional Director for Region 3, after Board investigation of a charge filed
by the Union on September 28, 1970, and answer filed by Respondent
191 NLRB No. 132
admitting jurisdiction but denying the commission of any unfair labor prac-
tices
' All dates found hereafter are in 1970, unless otherwise specified
RITE AID CORP. 779
John Gilbert as assistant manager of that store during August
1970.
B. Reaction of Respondent to the Union Campaign
As the main issues are (1) whether Respondent granted
employees a beneficial privilege of personal cashout of their
register cash drawers at end of shift to induce them to refrain
from membership in or support of the Union, and (2) whether
Respondent discharged Brenrion on September 18 ostensibly
for improper handling of his cash register, it is proper at the
outset to outline the policy and basic standards of Respond-
ent in cash register operation as set forth in its operating
manual for store managers and the duties of cashiers in regis-
ter operation. When a cashier begins work on her shift,' she
gets her personal cash drawer from the office safe, already
filled with her "bank" of starting cash (usually a round figure
like $40, $50, etc.). She counts the bank to check whether it
jibes with the starting figure noted on her cashier's daily
balance sheet for the day and then takes the drawer to her
register, where her main job is to service customers by ringing
up price of each item a customer buys, subtotalling all items
so the customer can see the total sales price, and then accept-
ing cash for the sale, making change from her drawer where
necessary. At the end of her shift, she takes her drawer from
the register, while the manager clears the register by use of
a reading key, which totals the sales for the day on a tape. He
withdraws the tape listing all individual and total sales for the
cashier, and she then takes the drawer to the office, where she
counts her cash in the presence of the manager and enters her
total on the daily sheet. The manager then checks that total
with the tape total and enters this figure and the opening
reading on the sheet. If the closing figure for cash and tape
total coincide, he signs the sheet, noting "zero" for shortages
and overages, and she countersigns it. If the new figures do
not agree, they may check the drawer cash against the tape
again and then he lists whether there is an overage or short-
age, or both, and the amounts, and the cashier then signs the
sheet, thereby attesting to accuracy of the figures thereon.
Any overages or shortages are listed by him at the same time
on her "monthly performance sheet," which is a cumulative
record kept by the month, showing her daily gross sales, daily
shortages, and overages by amount and daily customer
count.'
In addition to the personal cashout procedure above, Re-
spondent tries to assure a cashier's strict accountability for
handling of her register and thereby impel accuracy in ringing
up sales and handling of cash by other requirements: Only the
one cashier may handle her drawer in that register during her
shift; she must lock it whenever she leaves it for any short
period for any reason, such as a coffeebreak; no other cashier
can relieve her in operation of her register for such periods;
if she leaves the register for an extended period of 2 hours or
more, the manager is supposed to lock it or, if another cashier
takes it over, the drawer in it is withdrawn and the register
cleared as at end of a shift, and the new cashier with her own
drawer takes it over. If two cashiers'ring on the same register
(i.e., one which provides for two drawers), each is assigned
and must handle only her own drawer. Cashiers must not use
their registers, while in operation, to ring up sales or make
change for themselves. If a cashier leaves her register in an
emergency for a short period, the manager must shift her
customers to another register where he, the assistant
manager, or the key-girl will handle sales from a "relief'
drawer, until the cashier returns and unlocks her own register
for use; management officials must not ring up sales on the
cashier's register, or make change from her drawer, while she
is absent.'
On an unidentified date early in August but before the
election in the clerks' unit, Division Manager Raymond
Campbell, on one of his periodic visits to stores in his area,
had short talks with the three women clerks' in the backroom
of the North Utica store in which he told each about the
coming election and outlined the benefits which Respondent
gave them and the disadvantages of having a union, such as
payment of dues, initiation fees, and possible fines.
In his talk with Sabourin, Campbell asked why she wanted
a union and told her to ask any questions she desired. She
stated some reasons for having a union and then asked him
why he was against a union. He replied that every customer
was "against the union's pressuring the store," and that the
workers could "get farther on your own than with the union."
On or about August 19, 1970, Area Supervisor DeCrisi, on
one of his weekly visits to the store, talked to the three clerks
named above and Brennon individually in the backroom
about the Union.
In his talk with Brennon, DeCrisi asked why he wanted a
union, what his grievances were, and whether the employees
could not handle their problems directly with management.
Brennon said he wanted a union because he had various
grievances. He complained that he was not allowed to cash
out his own register during the day, that other workers were
using his register during the day, so that he should not be held
responsible for it, and for that reason the company allowance
of $5 a month for register shortages was too small. DeCrisi
asked if he had talked to Manager Eterno about it. Brennon
said he had, but without result. Brennon also stated com-
plaints about working hours and failure to receive any infor-
mation about company life and health insurance or other
benefits for employees. DeCrisi outlined to him some conse-
quences of union membership, such as payment of union dues
and fines, and that employees might have to go on strike and
lose wages thereby. Brennon answered that he wanted no part
of the Union at that time. DeCrisi told him that, if he was a
good employee, he would probably be employed "regard-
less." DeCrisi then called Eterno into the backroom and
asked him in the presence of Brennon about the register
cashout complaint. Eterno replied that all the employees had
been told they must cash out their own registers personally
in presence of the manager, as each cashier was, responsible
for operation of his own cash drawer, but they did not want
to do it. Brennon said he had not objected to doing it, and
Eterno admitted Brennon had been cashing out his own
drawer since June. Brennon complained that he was not the
only person who rang sales on his cash drawer. Eterno replied
that he had told Brennon specifically he was solely responsi-
ble for that drawer and its contents, that, if anyone rang sales
on it in his absence, it was his own doing, as Eterno had never
given any instructions allowing that and was not aware of it.
DeCrisi said Eterno must not just talk about these practices,
but must follow through and make sure the company policy
was carried out, that he "did not want this to happen again
because the register was rung bad." DeCrisi then telephoned
the Harrisburg office to get the insurance information Bren-
' In this outline I use the feminine gender, as the record seems to indicate
that most cashiers were women However the procedures outlined applied
equally to all cashiers, regular and part-time
' Key-girl Nancy Poccia follows the same procedure when she takes the
place of Eterno at cashout time. Due to his other duties, Poccia handles
cashouts far more often than he.
3 These facts are found from documentary evidence and credited tes-
timony of Nancy Poccia, Marion Sabourin, Peggy Cummings, DeCrisi,
Eterno, and Gilbert, and partial admissions of Brennon.
' Cummings, Poccia, and Sabounn
780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
non wanted, but could not get the right person, so told Bren-
non to write up a request for the information and have it sent
to Harrisburg.
In his talk with clerk and key-girl Nancy Poccia, DeCrisi
asked the same questions and made the same antiunion argu-
ments as in the talk with Brennon. When he asked why she
wanted a union, she replied that the Union would not have
come into the store if the Company had not started using lie
detectors on the workers.
In his short talk with Cummings, DeCrisi mentioned the
coming election and asked if she knew the company benefits
and what she felt the Union could do for her. Her reply does
not appear.
In talking to Sabourin, DeCrisi mentioned the coming elec-
tion, asked if she knew she would have to pay union dues, and
might lose money if the workers struck and she was not
working. He asked what her complaints were and why the
clerks wanted a union . She replied her complaints were no
different from those of the other workers.
Pursuant to DeCrisi's orders to enforce the personal cash-
out policy, Eterno the same day told all employees at the store
that this procedure must be followed. Thereafter all clerks
daily cashed out their register drawers in the presence of
Eterno, the assistant manager or key-girl Poccia and person-
ally filled out their daily balance sheets, in accordance with
the company manual. This procedure was followed by all
until November, when Eterno left to become area supervisor,
but when a new manager came in he reverted to the looser
practice of cashing out all registers himself in the presence of
the employees, and under his regime the clerks have also
returned to the practice of ringing up sales on each other's
registers when relieving each other for breaks, etc.'
CONTENTIONS OF PARTIES AND CONCLUSIONS ON TALKS
WITH EMPLOYEES
At the outset I must find and conclude on the basis of
well-settled Board and court decisions that the systematic
interrogation of all store employees by DeCrisi, in talks in
which he plainly sought to discover workers' reasons for
wanting a union, thereby eliciting their specific grievances,
but without specific assurance against reprisal, and while
presenting Respondent 's antiunion arguments, amounted to
coercive inquiries into employees ' union sentiments and
desires which were well calculated to inhibit them in their
choice of a bargaining agent and that Respondent thereby
violated Section 8(a)(1) of the Act.'
General Counsel argues that institution of the personal
cashout procedure on August 19, shortly before the election,
at the request of Brennon amounted to a grant of benefit in
the form of a privilege not accorded employees theretofore,
which was calculated to induce them to refrain from joining
the Union or supporting it in the coming election or other-
wise. Respondent argues, contra, that its action was merely
a revival' of a company policy which had been put into effect
when Respondent took over the North Utica store but later
had not been strictly enforced due to employee resistance and
was replaced by a looser compromise procedure and strict
enforcement of the basic policy was, revived only at the insist-
' I find the above facts from credited and mutually corroborative tes-
timony of the four clerks above, DeCrisi, Eterno, and Campbell. Testimony
of the latter officials at various therewith is not credited, mainly because
their testimony indicates that the talks of DeCrisi and Campbell with the
clerks were not casual but deliberate attempts to give company arguments
against unionization , and Campbell 's remarks to Sabourin shows that Re-
spondent was antiunion (which in itself is not an unfair labor practice).
' Engineered Steel Products, Inc, 188 NLRB No. 52.
ence of Brennon and that its imposition on the employees was
not a benefit calculated to influence them to favor Respond-
ent, but rather the reimposition of an added burden or duty
which they had continually tried to avoid. Although a prima
facie case supporting the claim of General Counsel can be
made from the grant of Brennon 's request (assuming it was
a benefit to him) just before the election, in course of discus-
sions where the employer solicited employees to air their
grievances, thereby raising some inference that the employer
intended to do something to satisfy their complaints,' on this
issue I must conclude that other substantial and significant
facts outlined below support Respondent's claim and present
a cogent rebuttal to General Counsel's thesis.
When Respondent took over the North Utica store in Oc-
tober 1969, DeCrisi, as the first store manager, put into effect
the company policy and procedure on personal cashout and
ringing of registers, as outlined in the manual and found
above and personally instructed all cashiers including Bren-
non in the procedure and reasons therefor, stressing the need
for strict accountability of cashiers for operation of their
register drawers and the money therein. Although the cash-
iers were well aware of the policy and the need to comply with
it, at least three of them (Poccia, Sabourin, and Cummings)
who had been cashiers for the prior owner and Brennon
resisted the duty of personal cashout because they considered
it an added burden and unnecessary chore or nuisance to
count their bank at start of shift and count coins and bills in
detail at end of shift and record the results, preferring to rely
on either the manager or key-girl Poccia to do that and record
the result accurately for them. Hence, they followed the new
procedure reluctantly and only to the end of 1969 and then
relapsed into their old practice. About the same time, they
also began to ignore the prescribed personal ringing on regis-
ters by allowing other cashiers to ring on their registers and
make change from their drawers while they were on break,
etc., and not locking them in such periods, being willing to
trust the relief cashier to handle their drawer properly and
ring sales accurately for those short periods; the only one who
apparently followed the proper relief procedure was key girl
Poccia, who would usually bring her own drawer to a register
when relieving another cashier, but even she violated it at
times. In addition , the store manager or his assistant would
at times violate the ringing rule when relieving regular cash-
iers during the day and part-time cashiers at night. Eterno
tried to eliminate these loose practices when he became store
manager in March 1970 by reviewing the proper procedures
with all cashiers and directing that they be followed. How-
ever, he was soon faced with the same resistance from the
cashiers and finally compromised on the cashout procedure
by counting the cash and making the bookkeeping entries for
each cashier himself but in her presence, usually having her
sign the daily balance sheet and countersigning it himself. In
this way, he adhered to the main accountability purpose of
the manual policy by having the cashier acknowledge the
results of, and any errors in, her register operation each day,
and giving him a chance to discuss them with her in an effort
to show her how to reduce or eliminate errors. The same
resistance induced him to refrain from strict enforcement of
the personal' ringing procedure or to make spot-audits and
other security steps required by the manual.
However, ,for reasons of his own, Brennon in June 1970
asked Eterno to allow him to make personal cashouts. Eterno
readily agreed, telling the other clerks that Brennon would do
it and asking them to do likewise, for he felt that if Brennon
took the initiative in following the proper procedure the other
' F. W. Woolworth Co. (Store No. 2288), 188 NLRB No. 119
RITE AID CORP. 781
cashiers might be induced to follow suit . His hope was not
realized for , although Brennon followed the proper ,proce-
dure for a month or two, the others refused to , so he did not
press the issue with them but cashed out for them himself.
Also, Brennon apparently lapsed into the old practice, and,
when he complained on August 19 to DeCrisi that he was not
allowed to cash out personally , DeCrisi took him at his word
(apparently not knowing that Brennon had been allowed per-
sonal cashout but had fallen back into the looser practice
contra the manual) and , even though Eterno protested that
Brennon had been told as early as June to follow the proper
practice as he requested , and that he had been doing so,
DeCrisi directed Eterno to make sure that all cashiers fol-
lowed it henceforth , and Eterno obeyed that order, with the
result that cashiers thereafter adhered to the proper proce-
dure until Eterno left the store in November ; in that period,
however, cashiers objected to cashing out after their shift
ended, on their own time, so Eterno again compromised by
letting them do it in the last 15 minutes of their shift. Nor did
he try to enforce the personal ringing procedure , for the
cashiers made it clear they considered it a nuisance to lock
their registers during a short absence, preferring to trust
another cashier to handle it properly in their absence and to
take the responsibility for her operation."
It seems clear to me from the above facts that Respondent's
revival on August 19 of the personal cashout procedure, at
the request of Brennon, was no more than a resumption of a
cash accounting practice which had long been company
policy designed mainly for its own benefit and financial pro-
tection, but which the employees including Brennon had long
avoided because they considered it an added burden , chore,
or nuisance in their work, rather than a benefit or privilege,
and which only incidentally constituted a possible benefit to
them insofar as it made them aware of their own errors in
register operation and gave them a chance to reduce or elimi-
nate them . It is also clear that, if Brennon had not asked for
personal cashout at that time, in light of Respondent's past
lack of success in getting employees to follow that procedure,
Eterno would probably have continued the looser practice of
cashing out registers himself, as the line of least resistance,
hence it cannot reasonably be said that Respondent of its own
volition revived the strict company practice just before the
election in such manner as to warrant the inference that it was
acting to sway the employees against the Union . I must there-
fore find and conclude that Respondent has adduced cogent
proof showing that the order for strict use of the personal
cashout practice was not the grant of a benefit or privilege to
induce employees to vote against the Union and that General
Counsel has not sustained the burden of proof that it was. I
therefore grant Respondent 's motion to dismiss paragraph
VI(b) and later allegations of the complaint covering this
point and will recommend that the complaint be dismissed to
that extent.
C. The Discharge of Robert Brennon
Robert Brennon , a young man apparently in his early
twenties , was hired by Respondent to work as a clerk-cash-
ier" in the North Utical store in November 1969 shortly after
Respondent took over the store from its prior owner. Bren-
non's choice of the Union as his bargaining agent and his
10 I find the above facts from credited and mutually corroborative tes-
timony of Brennon, Poccia, Cummings, Sabourm , DeCrisi, and Eterno
Testimony of Brennon claiming ignorance of the company cashout and
related procedures and otherwise at vanance with these facts is not credited
" The main duties of all clerks were selling products to customers, which
involved continual use of cash registers to consummate sales, incidental
duties were stocking shelves, taking inventory when required, etc
assitance to it in the early 1970 organizing campaign has been
noted above. Brennon 's reply to Respondent 's illegal interro-
gation of him on August 19 regarding his reasons for wanting
a union in the store , in which he recited various grievances
to show the need therefor, and his open activity as union
observer in the three elections of August 27 show that Re-
spondent knew at least as early as August 19 that Brennon
favored a unionized store and that from August 27 onward
he was apparently an active adherent of the Union . Respond-
ent's union animus is plain from its coercive interrogation of
employees and other remarks of officials found above.
Respondent claims it discharged Brennon on September 18
for chronic careless handling of his cash register , which had
resulted in excessive shortages and overages over a period of
months in his cash register accounts. General Counsel argues
that the discharge was due solely to a strict application of
company policy on such discrepancies in his case alone, in
contrast to its failure to discharge or discipline other cashiers
with as many or worse errors , which were caused by Re-
spondent's continued laxity in enforcement of stated com-
pany policy on the handling of cash registers outlined above
and which tended to foster rather than prevent cash register
error , hence enforcement of strict standards as to overages
against him was merely a pretext to get rid of a known and
active union adherent.
It is clear from testimony of the four cashiers who testified
and credible testimony of DeCrisi and Eterno that : While the
store manager continually tried to enforce the rules in the
company manual on cash register operation in a realistic way,
particularly the cashout procedure, in an effort to remind
cashiers daily of their shortages and overages and thus alert
them to the need of careful register operation to reduce such
errors, Respondent treated overages as far more serious evi-
dence of mishandling of registers than shortages . Thus, it
realized that some shortages in ringing sales and making
change were inevitable in the course of ringing item prices
and making change in possibly hundreds of customer transac-
tions daily and thousands in the course of a month , hence it
had the lenient policy of absorbing shortages up to $5 per
month per cashier, requesting the cashier to pay out of her
own pocket shortages above that amount. However, overages
presented a far more serious problem , for they were good
indications of deliberate receipt of more cash from a customer
than the sales total required , or failure to make the proper
amount of change to a customer, as where a $10 bill was
tendered but change returned as from a $5 tender. Also,
overages could easily be deliberately built up by a cashier and
then pocketed , before the manager checked or cashed out the
cashier's drawer in the register, so that sales totals and cash
in hand would coincide before a cashout or other check of the
register . Managers were warned that a continuance of large
overages were a good indication of dishonesty in the cashier,
and for that reason managers were urged to make several
"spot audits" on registers during a shift to learn whether
unusual overages were building up, and how often, and to
change cashiers on a register where an overage pattern devel-
oped. On the other hand, Respondent knew from experience
that unusual overages or shortages might result from mal-
functions of the register itself, despite proper and accurate
handling by the cashier , and in such cases the cashier was not
held responsible for unusual errors.
In the case of Brennon , I find from credible evidence of
Eterno, DeCrisi, and Campbell , as well as admissions of
Brennon, that : As early as April or May , Eterno noted an
unusual number of shortages and overages in Brennon's
monthly performance sheet. In one month or the other, he
had an $8 shortage and had to reimburse Respondent for the
$3 over the $5 allowance . Once in those months, Eterno
782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
called out to Brennon while he was checking out customers
"You got to watch the overages ." After noting the unusual
errors on Brennon's May performance sheet , Eterno showed
it to DeCrisi on one of his periodic visits to the store. DeCrisi
commented that Brennon had far too many shortages and
overages , with overages much greater in number and amount
than shortages and told Eterno to discuss it with Brennon at
once. Eterno did so the same day, pointing out the unusual
overages and, when Brennon said he could not understand
what he was doing wrong, Eterno took Brennon through the
step-by-step routine of proper handling of his register,, par-
ticularly the process of ringing sales, subtotals and totals, and
making change . Brennon went through each step himself,
until Eterno felt he knew how to handle the register properly.
Eterno kept track of Brennon 's operation in June (as he did
with all other cashiers), and, when he continued to make
frequent errors, again reminded him of his bad showing in
May and told him he would have to improve and could not
be allowed to handle his register in that way . In this period,
Brennon was cashing out his own register at end of his shift
in Eterno 's presence, as he had requested, and Eterno was
checking his register with him daily and in doing this Eterno
came to the conclusion that his errors were due mostly to his
negligence in ringing up sales and that,the overages were due
not only to this but also to errors in making change for
customers . Once in June, Eterno had Brennon go through the
step-by-step register routine to make sure he understood, the
proper method of handling it.
Brennon improved somewhat in handling his register, but
his June record was still unsatisfactory , so Eterno reviewed
it again with DeCrisi early in July. DeCrisi compared it with
the performance of the other cashiers and told Eterno to talk
to Brennon again . Eterno reviewed the register procedure
with Brennon as in the previous months. Late in July DeCrisi
reported Brennon's situation to his superior , Campbell, who
directed him to talk to Brennon personally at the store to
make sure that he knew how to handle his register , go over
his performance sheet with him, and warn him of discharge
if he did not improve.
DeCrisi used the occasions of his August 19 interrogation
and propaganda talks to employees to talk to Brennon about
his performance . When Brennon brought up his cashout
complaint, DeCrisi mentioned his bad performance sheet. In
defense, Brennon complained that he was not the only one
using his register , that other workers rang up sales on it,
implying that they made the errors and arguing that this was
why the $5 monthly allowances on shortages was too small.
DeCrisi replied that Brennon knew he was responsible for his
register operation and for cashout at end of his day, that no
one else was supposed to ring on his register drawer , and that
this could be straightened out at once. He then called Eterno
in for an explanation . Eterno said Brennon at his own request
had been allowed to cash out his own drawer since June and
that, if others ' were ringing on his register , Eterno was not
aware of it; as Brennon had been told he alone was responsi-
ble for his register drawer , Eterno had never given anyone
else authority to use it in the register and, if Brennon allowed
anyone else to ring on it while he was away from it, that was
his own responsibility.
After the August 19 talk and almost up to his discharge,
Brennon cashed out personally each day in the store office.
For about 4 days after August 19 his register had no shortages
and only two overages , one of them over $1, but in the last
9 days of August he had three shortages (two of them large)
and one overage about $1 . In the 16 days he worked in
September, he , had 11 overages , with 6 of them over $1 each
(3 of them were over $5 each), and 4 shortages , with 2 of them
over $1 each . When Eterno noted the unusually large over-
ages on September 6 ($5.09) and 7($5.04), and September 13
($8.77) and 14 ($4.07), he spoke to Brennon about it on the
14th , saying he could not continue to handle his register in
this way . On the 15th Eterno showed DeCrisi Brennon's
August and September performance sheets. DeCrisi said he
would talk to Eterno shortly about it, as he had another
appointment that day . After reviewing the case with Camp-
bell, DeCrisi called Eterno on September 17 or 18, said Bren-
non had had enough chances to improve his work but did not,
so he should be discharged for failure to operate his register
properly.
Brennon was discharged about 6 p.m. on September 18 by
Eterno who told him he got a telephone call ordering him to
fire Brennon and said it was because Brennon was not able
to ring his register "according to company standards," that
he had too many overages . Eterno reminded him he had been
warned about it before , and Brennon admitted this. Brennon
asked if he could not be taken off the register and put at stock
work . Eterno said that was up to DeCrisi; Brennon would
have to ask him , but Eterno doubted if it could be done. He
added that Brennon was very reliable and dependable, never
gave Eterno a hard time, and, if he had anything else open,
it would be no problem to keep him but this order came from
the office, that Roy Campbell and DeCrisi had told him two
or three times before to fire Brennon , but Eterno had "gone
to bat" for him three times, but this time the officials told him
to fire him. Brennon then left. He has not since been rein-
stated or offered any other work."
Considering all of the above facts and circumstances, I
must conclude that Respondent 's treatment of Brennon re-
garding his register performance , when compared with the
performance of other cashiers , affords strong support for its
defense. First, although Brennon indicated on August 19 to
DeCrisi that he favored a union in the store because of his
complaints about operations , he made it clear to DeCrisi in
the same discussion , after that official outlined arguments
against a union , that he did not favor the Union involved in
the coming election . Further, it is clear from testimony of
manager-trainee John A. Gilbert and admissions of Brennon
that : A few days after the election Brennon told him in a
casual conference in a nearby restaurant that he did not vote
for the Union in the election , although he was dissatisfied
with the way Respondent ran the store , and that he contem-
plated quitting ' his job to go to college . Gilbert related this
conversation to DeCrisi about September 8 or 9 in discussing
Brennon 's operation of his register . Since all parties knew
right after the election , as Brennon admitted, that the Union
won it by a vote of 5 to 1, Respondent was entitled to assume,
both from his remark on August 19 and later statement to
Gilbert, that hehad cast the lone vote against the Union and
had been against it at least since August 19, notwithstanding
that he had acted as its observer in the election." Further,
there is no proof at all that Respondent 's officials made any
ominous mention of his union activity or adherence in any of
their discussions with him about his work or at his discharge
interview ; to the contrary, Brennon admitted that, when he
told DeCrisi on August 19 that he wanted no part of the
Union at that time , DeCrisi replied only that , if he was a good
employee, he would probably be employed "regardless."
Hence, even considering the coercive nature of its interroga-
tion of employees on August 19, I cannot infer that Respond-
" The above facts are found from credited testimony of all of the wit-
nesses on both sides , except where otherwise noted. Testimony of any of the
witnesses in conflict therewith is not credited
" There is no proof that Respondent knew, or had reason to believe
before the election , that Brennon had signed a union authorization card or
engaged in activity for the Union before August 19.
RITE AID CORP. 783
ent manifested any desire or intent to implement its union
animus by discriminatory action against any employees in-
cluding Brennon. Other circumstances militating against that
inference are the participation of Respondent in three Board-
conducted elections on August 27, and the uncontradicted
facts that Respondent has contractual relations with various
labor organizations in other stores both in and outside New
York, all with no record indication of union animus or viola-
tion of the Act. Thus there is a lack of substantial proof to
warrant an inference that Respondent's dealings with Bren-
non about his register operation and final discharge for bad
performance were motivated by a significant desire to get rid
of him or any other employee as active union adherents.
Second, the record clearly shows that Brennon's register
performance since May produced both overages and short-
ages continually greater in frequency and amount than those
of other cashiers in the same period and that Respondent
worked repeatedly with him to review his register operation
and tried to help him cut down his errors for over 4 months
before it discharged him. When Eterno found excessive errors
in his May operation, he reviewed the whole register opera-
tion with Brennon. When excessive overages (the more seri-
ous type of error) appeared in his June record, he went
through the same review with him, warning him that he must
improve and that Respondent could not continue to allow
such improper register handling. The same thing occurred in
July. In August, even after he succeeded in his demand for
a return to the normal personal cashout practice, Brennon's
register still showed for the whole month seven shortages,
with two large items after August 19, and seven overages, two
of them over $1 each occurring before August 19, and two
others exceeding $1 each occurring after. In 16 working days
in September, he had 11 overages, 6 of them large, and 4
shortages. The pattern in both months showed chronic errors,
and the large amounts of specific overages, particularly in
September, which totalled over $28, demonstrated careless
handling of his register, at the very least.
As against Brennon's record, the evidence produced by
General Counsel about performance of the other three cash-
iers shows only that: Sometime in the summer or fall of 1970,
Cummings once had an overage of $20, and on another occa-
sion a shortage of $13.41, of which she paid $8.41 out of her
own pocket without protest. DeCrisi testified credibly that
when this large overage came to his attention, it was dis-
cussed with Cummings and both he and Eterno discussed it,
because they had been having intermittent mechanical trou-
ble with her register; however, no action was taken against
her because a single instance of this type, (much less than a
"pattern" of errors), which might be due to mechanical prob-
lems beyond her control, did not warrant discipline. General
Counsel also proved from performance sheets of December
1970 (compiled under the, looser cashout practices of a new
manager and after Brennon's discharge), that key-girl Poccia
had 18 errors for the month, 7 overages totalling $1.22 and
11 shortages totalling $2.04; Cummings had 26 errors, con-
sisting of 16 overages totalling $2.52 and 10 shortages totall-
ing $3.28; and Sabourin had 20 errors, with 14 shortages
totalling $2.13 and 5 overages totalling $1.05. Their sheets
also show that none of the three had a single error of either
type more than 79 cents: of their combined 64 errors for the
month, only 8 were 50 cents or over, and most of the others
ranged between a penny and 25 cents. DeCrisi admitted that
16 or more overages a month showed a "pattern" of errors
within the admonitions of the manual warning that "chronic
overages" indicated a "thief on your hands," and directing
managers to change cashiers on a register where they found
and "overage pattern." However, it is also clear from tes-
timony of DeCrisi, Eterno, and Poccia that cashiers were
reminded on cashouts specifically about overages or short-
ages which were unusually high in amount, for purpose of
finding and correcting such errors, but not when single errors
of either type were small, running well under $1; on the other
hand, overages of $1 or more, and particularly those in high
amounts, like $4, $5, etc., were cause for concern, investiga-
tion, and corrective action. This practical interpretation and
application of the general standards in the manual is consist-
ent with Respondent's recognition that small errors in re-
cording sales are inevitable in large volume sales operation
and must be endured and shows why Respondent took no
disciplinary action against Poccia, Cummings, and Sabourin
in December for numerical patterns of overages and short-
ages running substantially higher than those of Brennon.
Since Respondent knew from the August 19 talks with these
four cashiers that all favored unionization, and Brennon's
remarks that day and to management through Gilbert on
election day and in September gave Respondent good reason
to infer that the three women had voted for the Union and
that all four favored unionization, it is a reasonable inference
that Respondent's failure to discipline the three women was
because their register performance as regards dollar amount
of overages was far better than that of Brennon and that it
discharged him for a chronic pattern of unusually high over-
ages and not because it wanted to get rid of known union
adherents.
Again, the December performance sheets for six other
clerks show a pattern of small totals of overages and short-
ages, similar to those of Poccia, Cummings, and Sabourin.
For the entire month the total overages of the nine employees
was only $6.28. In contrast, Brennon's total overages of $8.81
for only 16 days of work in August, and $28.19 for 16 days
in September appears unusually excessive. This comparison
further highlights the extent of his poor performance in those
months."
Another indication that the three women cashiers were
kept at work because their register errors were within tolera-
ble limits, but Brennon was not because he was unable to stay
within those limits, lies in the facts that their tolerable over-
ages in December came in a period of loose cashout and other
register practices, while Brennon's deficiencies occurred
while operating under the stricter procedures which he de-
manded and which were more -likely to keep a cashier alert
to ring his cash register and handle his money more carefully;
yet even under the stricter system his overages were unusu-
ally high. Hence, the argument that Respondent was deliber-
ately allowing a lax register operation in order to "frame"
him by making it easy for him to make a bad record on which
he could be discharged cannot be supported, for it is clear that
he could not avoid negligent handling of his register, either
under a strict or loose enforcement of company policy, and
even after repeated "refresher" courses in register operation.
In contrast, the other three union cashiers were able to oper-
ate their registers in tolerable fashion under either strict or lax
11 Respondent's defense is further supported by the failure of General
Counsel to produce record or oral testimony about the performance of the
three women cashiers in the crucial May-September period. Although their
performance sheets and the daily balance sheets supporting them for those
months were no longer available to either side, having been destroyed in the
usual course of business within about 2 months after the periods they cov-
ered, General Counsel did not try to reconstruct from the cashiers them-
selves any detailed picture of their daily and monthly performance in those
months, which warrants the inference that if they had testified thereon, they
would have proven their pattern of errors in that period was about the same
as in December, but far fewer and smaller in amount than those of Brennan,
which would have supported his own admission that he had more overages
than other cashiers.
784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
application of the policy and without the necessity of "re-
fresher" courses.15
General Counsel intimates that Respondent was deliber-
ately lax in not requiring Brennon to sign his daily balance
sheets during August and September, implying that perhaps
those sheets were falsified in some manner to show a bad
record in preparation for discharge. On its face, the argument
is not impressive, for it strains credulity to say that Respond-
ent would throw aside all of its cash-accounting procedures
and jeopardize its whole retail operation and "rig" its records,
solely in order to work out an artificial scheme to get rid of
one employee whom it had reason to believe voted against the
Union. From another point of view, the argument becomes
pure speculation, however, for it appears Brennon was well
aware of his daily performance in that period when he cashed
out personally and must have seen the results noted on his
daily sheets, although he did not sign them. During most of
this period Eterno was absent on vacation, and manager-
trainee Gilbert handled the cashouts. Hence it is inconceiva-
ble that, if deliberate false entries were made on the sheets,
Brennon was not aware of them and did not have a chance
to complain, because his testimony indicates that one reason
for asking for the personal cashout was to maintain closer
personal check on his daily performance. Thus, the fact that
he did not raise any complaints about the August and Sep-
tember sheets, or even insist on signing them per company
policy, makes it more likely than not that he knew of his
unusually high shortages and overages and did not want to
admit them formally by signing the daily sheets.
Finally, I cannot agree with General Counsel's claim that
Eterno indicated the pretextual nature of the stated reason for
discharge when he assured Brennon at discharge that he was
a reliable and dependable employee, and he would keep him
at work but for the order of top management to discharge
him. Eterno's entire remarks on this point indicate only that
he had found Brennon generally reliable and dependable,
aside from his negligent handling of his register and would be
willing to keep him on the payroll in other work if available
but since it was not, he had to let him go for bad register
performance. This comment was obviously in answer to
Brennon's own acceptance of his register deficiencies, when
he asked if Eterno had any other work for him.
Having considered carefully all the above circumstances
and the arguments pro and con, I conclude that Respondent
has sustained the burden of adducing evidence showing that
Brennon was discharged for good cause, to an extent ade-
quate to rebut the prima facie case of discriminatory dis-
charge made by General Counsel, and that General Counsel
has failed to sustain the ultimate burden of proof on the whole
record that the discharge of Brennon was motivated in any
way by his union activity or adherence.16 I therefore grant
Respondent's motion to dismiss paragraphs VII, VIII, and X
of the complaint raising this issue and will recommend'that
the complaint be dismissed accordingly.
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
the several States and tend to lead to labor disputes burdening
and obstructing commerce and the free flow of commerce.
IV THE REMEDY
Having found that Respondent engaged only in coercive
interrogation of employees to the extent found above in viola-
tion of the Act, but no other unfair labor practices, I will
recommend that it be ordered to cease and desist from such
conduct and any like or related conduct.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce and
the above-named Union is a labor organization within the
meaning of the Act.
2. By systematic interrogation of its employees about their
reasons for wanting a union in a manner constituting interfer-
ence, restraint, and coercion of its employees in the exercise
of rights guaranteed to them by Section 7 of the Act, Re-
spondent has engaged in unfair labor practices violating Sec-
tions 8(a)(1) and 2(6) and (7) of the Act.
3. Respondent has not violated the Act by its discharge of
Robert Brennon or by reviving at his request its strict com-
pany policy and requirement of personal cashout of registers
by cashiers or by any other conduct stated in the complaint,
except as found above.
Upon the basis of the foregoing findings of fact, conclusions
of law, and the entire record in the case, and pursuant to
Section 10(c) of the Act, I hereby issue the following recom-
mended:"
ORDER
Respondent, Rite Aid Corporation, its officers, agents,
successors , and assigns , shall:
1. Cease and desist from:
(a) Interrogating its employees in a coercive manner about
their reasons for desiring a union.
(b) In any like or related manner interfering with, restrain-
ing, or coercing its employees in the exercise of rights guaran-
teed to them by Section 7 of the Act, except to the extent that
such rights may be affected by an agreement requiring mem-
bership in a labor organization as a condition of employment,
as authorized in the proviso to Section 8(a)(3) of the Act.
2. Take the following affirmative action designed to effectu-
ate the policies of the Act:
(a) Post at its store on Auert Avenue, North Utica, New
York, copies of the attached notice marked "Appendix.""
Copies of said notice, on forms provided by the Regional
Director for Region 3, after being duly signed by an author-
ized representative of Respondent, shall be posted by it im-
mediately upon receipt therof and maintained by it for 60
consecutive days thereafter in conspicuous places including
all places where notices to employees are customarily posted.
Respondent shall take reasonable steps to insure that said
notices are not altered, defaced, or covered by any other
material.
The activities of Respondent set forth in section II, above,
occurring in connection with Respondent's operations de-
scribed in section I, above, have a close, intimate, and sub-
stantial relationship to trade, traffic, and commerce among
" On this point , I note that Respondent at no time charged Brennen with
thievery but only negligent handling of his register.
11 See The Goodyear Tire & Rubber Company, 188 NLRB No 88, which
is pertinent on discharge of a union adherent for poor performance after
repeated attempts to help him improve his work
" In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided in
Section 102 48 of the Rules and Regulations , be adopted by the Board and
become its findings, conclusions , and Order, and all objections thereto shall
be deemed waived for all purposes.
" In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board."
RITE AID CORP. 785
(b) Notify the Regional Director for Region 3, in writing,
within 20 days after receipt of this Decision , what steps Re-
spondent has taken to comply herewith."
IT IS FURTHER RECOMMENDED that the complaint be dis-
missed insofar as it charges a discriminatory discharge of
Robert Brennon , the coercive grant of benefits to employees
in the form of personal cashout of their registers , or any other
conduct not specifically found above to be a violation of the
Act.
" In the event that this recommended Order is adopted by the Board
after exceptions have been filed, this provision shall be modified to read-
"Notify the Regional Director for Region 3, in writing , within 20 days from
the date of this Order , what steps the Respondent has taken to comply
herewith."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial at which all sides had the chance to give evi-
dence, it has been decided that we, Rite Aid Corporation,
violated the National Labor Relations Act, and we have been
ordered to post this notice.
The National Labor Relations Act gives you, as an em-
ployee, these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through a representative
of your own choosing
To act together with other employees to bargain
collectively or for other mutual aid or protection;
and
If you wish , not to do any of these things.
Accordingly , we give you these assurances:
WE WILL NOT question you in a coercive manner
about your reasons for wanting a union in our North
Utica, New York , store.
WE WILL NOT in any like or related manner interfere
with , restrain, or coerce you in the exercise of any of the
rights guaranteed to you by Section 7 of the Act, except
to the extent that such rights may be affected by an
agreement requiring membership in a labor organization
as a condition of employment as authorized by the
proviso to Section 8(a)(3) of the above-mentioned Act.
Dated By
RITE AID
CORPORATION
(Employer)
(Representative) (Title)
This is an official notice and must not be defaced by any-
one.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered , defaced, or
covered by any other material.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board 's Office, Fourth
Floor , The 120 Building, 120 Delaware Avenue, Buffalo,
New York 14202 , Telephone 716-842-3100.